F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 27 August 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 August 2020,
regarding an employment-related dispute concerning the player Ebecilio Lorenzo Leroy
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Tomislav Kasalo (Croatia), member
Jérôme Perlemuter (France), member
CLAIMANT / COUNTER-RESPONDENT:
EBECILIO LORENZO LEROY,
The Netherlands
Represented by Mr Arne Al
RESPONDENT / COUNTER-CLAIMANT:
JUBILOTO, Japan
Represented by Dr Volker Hesse
I. FACTS OF THE CASE
1. On 27 July 2019, the Dutch player, Ebecilio Lorenzo Leroy (hereinafter: the Claimant or player), and
the Japanese club, Jubiloto (hereinafter: the Respondent or club), concluded an employment contract
(hereinafter: the contract) valid as from the date of signature until 1 January 2020.
2. According to art. 4 and 5 of the contract, the club undertook to pay the following remuneration and
expenses to the player:
(1) “Basic remuneration
(I) Total amount: EUR 500,000 net (corresponding to 6 months)
(II) Monthly amount EUR 70,000 net (however, EUR 150,000 net in July)
(2) The Club shall pay to the Player fluctuating remuneration and other remuneration based on the
criteria set forth separately
Any expenses necessary for transportation and accommodation of the Player during any trips for the
activities for the Club shall be borne by the Club.”
3. The Claimant’s obligations were set out as follows in the contract (art. 2):
(I) “To participate in all games designated by the Club;
(II) To participate in training sessions, training camps and seminars designated by the Club;
(III) To participate in meetings and events that are necessary in preparation for games;
(IV) To wear uniforms and training wear supplied by the Club;
(V) To participate in medical checks, vaccinations, and other medical treatments designated by
the Club;
(VI) To participate in promotional, fan-service and social action activities designated by the Club;
(VII) To participate in relevant training sessions, training camps and games if selected by JFA as a
member player for any category of Japan’s national team or other national delegation teams;
(VIII) To undergo drug tests designates by JFA or the League;
(IX) To use transportation and accommodation facilities designated by the Club for training
camps, games on the road, etc.;
(X) To obtain the prior consent of the Club for the choice of residence;
(XI) To obtain the prior consent of the Club for engaging in any income generating activities other
than the services for the Club; and
(XII) Any other matters that the Club may consider necessary.”
4. According to art. 9 of the contract, the club had the possibility to terminate the contract as follows:
(1) “If any of the following events occurs on the part of the Player, the Club shall have the right to
terminate this Agreement immediately, by notifying the Player in writing:
(I) If the Player breaches or defaults in any of his duties and obligations under this
Agreement and fails to comply with a notice given by the Club to cure or remedy the
same;
(II) If the Player permanently loses his athletic ability as a football player due to any illness or
injury by his own negligence;
(III) If the Player commits an act that constitutes a penal crime;
(IV) If the Player receives an order of suspension from games for a period of 6 months or
more in any game due to any misconduct or any other cause attributable to himself,
resulting in a material failure to perform this Agreement; and
(V) If the Player materially disturbs the order of the Club.
(2) If the Club terminates this Agreement pursuant to the preceding paragraph, it shall pay to
the Player such pro rata portion of the Basic Remuneration as will correspond to the period
up to the month during which the termination notification is sent.”
5. On the other hand, the player could terminate the contract on the following conditions (art. 10):
(1) “If any of the following events occurs on the part of the Club, the Player shall have the right to
terminate this Agreement immediately, by notifying the Club in writing:
(I) If the Club fails to make payment of any remuneration or other amount as it becomes due
for more than 14 days from the due date;
(II) If the Club fails to participate in 3 or more consecutive games indicated by the League
(hereinafter “Qualified Games”), with no justifiable reason; and
(III) If the Club is excluded from the League
(2) If the player terminates this Agreement pursuant to the preceding paragraph, he shall be
entitled to receive the Basic Remuneration for the entire term of this Agreement.”
6. Art. 15 (Settlement of Disputes) of the contract reads as follows:
(1) “Should any dispute between the parties hereto from or in connection with the interpretation
or performance of this Agreement, the Club and the Player shall endeavour to resolve the
dispute through mutual discussion in good faith.
(2) If the dispute is not resolved within 30 days after a request for discussion from either party,
either of the Club and the Player, according to the statutes of the League or JFA, may ask the
League or JFA for a resolution of the dispute.”
7. On 27 July 2019, i.e. same day on which the contract was signed, the parties concluded a
Memorandum of Agreement (hereinafter: the memorandum). According to art. 1 of the
Memorandum, the term of the employment relationship was from 27 July 2019 until 1 January 2022.
In this regard, the parties undertook to “sign the contract for each year (…)”.
8. Art. 2 of the memorandum set out the payment schedule of the Claimant’s salary, as follows:
“2019 season July 2019 to 01 January 2020 (5 months and 5 days)
Total amount EUR 500,000 (net)
EUR 150,000 (net) paid in a lump sum in July
EUR 350,000 (net) paid in monthly instalments for 5 months from August.
2020 season 02 February 2020 to 01 January 2021 (11 months)
Total amount EUR 700,000 paid in monthly instalments for 11 months
2021 season 02 February 2021 to January 2022 (11 months)
Total amount EUR 700,000 paid in monthly instalments for 11 months”
9. Art. 9 of the memorandum (Applicable law and jurisdiction) states as follows:
“Any and all disputes arising out or in connection with this Contract shall be dealt with exclusively by
the judicial bodies of FIFA and CAS as appeals body (…)”
10. On 31 January 2020, the parties concluded a new employment contract, valid as from 2 February
2020 until 1 January 2021. Said contract specified that the financial conditions as recalled in point I.7.
above for the season 2020 remained unchanged, while the other contractual terms also remained
unchanged.
11. On 11 October 2019, the club sent a “warning statement” to the player. In such statement, the club
recalled the content of art. 2 of the contract and stated that the player had repeatedly violated such
his contractual obligations by (i) failing to communicate with the club 30 minutes before the training
in breach of the club’s rules and not coming to training without prior notice on 18 September 2019;
(ii) being absent from training on 2 October 2019 “due to a poor physical condition having drunk until
late at night”; (iii) contacting the club’s interpreter late at night on 18 September 2019 and 2 October
2019 while being “severely drunk”. In this context, the club deemed that such behaviour had affected
the club’s image and discipline. Therefore, the club asked the player to (i) apologise to his teammates
before returning to training, and (ii) comply with his contractual obligations.
12. On 1 February 2020, the club issued a “Notification” to the player, warning him that his contract will
be terminated “if he does not comply with the requested behaviour by 3 February 2020” in relation
to the attendance at an upcoming media event.
13. On 25 February 2020, the player complained to the club of his individual training. According to the
player, this solitary training was a punishment as it was “without any official notice on why and for
what term”. As such, the player requested to be reintegrated to the first team again, at least for
trainings.
14. On 27 February 2020, the club replied, stating the following:
(i) During a team’s camp on 21 January 2020, the player told the head coach that “he
would not like to play at our club”.
(ii) In a training match on 5 February 2020, the player acted in a way which disturbed the
team’s discipline: “refusal to shake hands with head-coach, team staffs and players,
kicking plastic bottles and the other violent words against humanity”.
(iii) In light of the above, the club prepared individual programs for the player. However,
the player was not able to perform said individual training entirely because he
complained of a foot and stomach pain, he stopped the program in the middle as he
felt exhausted and he wanted to practice with more strength.
15. On 28 February 2020, the player replied to the points raised by the club in its letter of 27 February
2020, as follows:
(i) The player felt that the head coach no longer trusted him. He therefore made these
comments about wanting to leave the club. However, the player emphasised that he
would stay professional and always play at 100% of his abilities.
(ii) The player contested the disciplinary issues raised by the club and explained that his
behaviour was a result of his winning mentality and his European background and
education.
(iii) The player further complained about the use of individual training, in solitary, as a
punishment. Moreover, the player complained about not being authorised in the
stadium during matches of the club.
(iv) The player indicated that he wants to make a fresh start and to be a positive part of the
team.
(v) Finally, the player apologised for missing training on the same day, i.e. 28 February
2020, stating that “the training times are not really in line with the rest of the squad.
Constant practice at 0700 in the morning turned over his rhythm, that’s why this
morning went wrong. He was at his girlfriend’s, and overslept. It was an honest
mistake”.
16. On 29 February 2020, the club informed the player of the termination of the contract and the
Memorandum with immediate effect, as per art. 9 of the contract. The reasons invoked by the club
for the termination were the player’s behaviour, contrary to art. 2 of the contract and despite the
written warning dated 11 October 2019. Moreover, the club mentioned the player’s absence from
training on 28 February 2020 without any prior authorisation, making it “no longer possible to
continue the contract”.
17. On 4 March 2020, the player contested the termination. First, the player recalled that the parties had
renewed the contract on 31 January 2020. Second, the player indicated that the termination was
illegal as it is in clear contradiction with the constant jurisprudence of FIFA’s Dispute Resolution
Chamber (DRC) and the Court of Arbitration for Sport (CAS). In this regard, the Claimant emphasised
that the club should have taken more lenient measures, such as fines, instead of terminating the
contract, which should be used as an ultima ratio measure only. Third, the player argued that the
decision of making the player train alone was a violation of his fundamental rights as a football player.
In view thereof, the player granted the club one day to “cancel the unilateral termination”, “to accept
the Player to return to the Club”, “to admit the Player to the training sessions of the first team” and
“to fully comply with all contractual conditions”.
18. On 14 March 2020, the player lodged a claim in front of FIFA against the club with respect to the
club’s unilateral termination of the contract. The player requested the following:
“It will be established that the Respondent terminated the Agreements without just cause
per date of 29 February 2020,
The Respondent will pay to the Claimant compensation in the amount of NET EUR
1,336,364.- (in words: one million three hundred thirty-six thousand three hundred sixtyfour
Euros), immediately;
To apply 5% interest per annum as from the moment the above-mentioned amount
becomes due by the Respondent to the Claimant;
The Respondent will pay to the Claimant the additional costs, such as costs of the
proceedings and legal costs as made by the Claimant; and
Sporting sanctions will be imposed upon the Respondent.”
19. First, the player quoted FIFA DRC and CAS jurisprudence, according to which the threshold for a club
to terminate a contract is high and a valid justification for an early termination must be admitted
restrictively. It must be an ultima ratio.
20. In this regard, the player held that he only received one warning letter prior to the termination notice.
Furthermore, the player contested having contacted the club’s interpreter while being drunk at night.
However, the player admitted that he missed two trainings but contested that his absences were due
to “a poor physical condition having drunk until late at night”.
21. The player held that missing three training sessions over a lengthy period of time is not sufficient to
terminate the contract with just cause.
22. In this context, the player held that only the elements presented in the warning letter dated 11 October
2019 may be taken into account as reasons to terminate the contract. The reason for this is that the
club never warned the player following this letter.
23. As regards his behaviour during the match on 5 February 2020, the player explained that he was
disappointed “about his performances and immediately went to the dressing room. On his way to the
dressing room he kicked a bottle away.” The player therefore contested to have disturbed the team’s
discipline.
24. Moreover, the player considered that the club disproportionately punished him to train alone, in clear
breach of his personality rights. This was a clear punishment according to him as he was forbidden to
touch a ball for weeks and not allowed in the stadium. The accumulation of these punishments is, in
his view, in violation of the principle ne bis in idem.
25. The Claimant further explained that the club terminated the contract based on art. 9 (1) – (V) of the
employment contract concluded on 31 January 2020. In his opinion, said contractual provision cannot
be valid as “the clause at hand offered ample opportunity to the Club to misuse its position in order
to unilaterally terminate the Agreements”. In other words, the clause is potestative.
26. The player claims compensation as a result of the termination without just cause. However, the player
considered that art. 9 par.2 of the contract is unenforceable as it is not reciprocal.
27. In reply to the player’ claim, the club first raised the issue that the player did not respect the conditions
set out in art. 15 (1) of the contract by not attempting any good faith discussions with the club.
28. As such, the club argued that the claim of the player should be considered premature and therefore
inadmissible.
29. Notwithstanding the above, the club lodged a counter-claim against the player, requesting the
following:
“Primarily:
a) The claim submitted by the player (…) is rejected.
b) The counterclaim submitted by Jubiloto Iwata is accepted.
c) The player (…) has to pay compensation to the club (…) for breach of contract in the amount of
EUR 517,091 plus 5% interest p.a. as of 1 March 2020 until effective payment.
d) A four-month restriction on playing in official matches is imposed on the player (…).
e) Consequences on the Player for the failure of pay the relevant amounts in due time to the Club
(…) in accordance with article 21bis RSTP
Subsidiarily:
a) The claim submitted by the player (…) is partially accepted.
b) [The club] is ordered to pay compensation to the player (…) in an amount of the residual value
of the Agreement reduced
i) with primarily the Player’s actual new incomes or culpably omitted incomes or
subsidiarily with the hypothetical incomes by the Player until the end term of the
contractual relationship with [the club]; and further reduced
ii) by 80% of the mitigated compensation as determined in point i) or the otherwise
calculated compensation.”
30. The club explained that the player missed three training sessions on 18 September 2019, 2 October
2019 and 28 February 2020 without any justification. The club claimed that this behaviour was in
breach of the contractual provisions, which contained an obligation to participate in the training
sessions.
31. In addition, the club indicated that the player was disrespectful and confrontational towards his
teammates, and provided a statement of its head coach and club doctor in support of its position. The
club insisted that this constituted a further breach of the contract.
32. What is more, the club declared that the player often drank heavily the night before training sessions,
and referred to a WhatsApp conversation of 2 October 2019 in which the player would have admitted
missing training due to a hangover. The Respondent provided statements of club officials and of the
manager of a bar where the player was a regular and in which the player is depicted as having drinking
issues.
33. The club also provided minutes of a meeting that took place on 4 October 2019 in which the player
and a club official had a discussion in relation to his alleged heavy drinking. In particular, such meetings
state the following:
“Club official: “How about that you were drinking and hanging out until 3:00am?”
Player: “It is not a good thing, but my friend his here from Nederland, that’s why.”
Club official: “Do you do this kind of thing often?
Player: “Sometimes”
34. The club underlined that the player’s heavy alcohol consumption had a negative impact on the player
and further breached his contractual duties.
35. Then, the club stated that the player was looking for an exit shortly after having joined the club, and
that the player was not motivated to train. In this respect, the club provided a transcript and an audio
recording of a meeting held with the player in which he inter alia explains his frustration to play in
Japanese second division and where he is declaring that “maybe for December we can find a solution”.
36. As to the termination of the contract, the club emphasised that it had terminated the contract on the
basis of art. 9 (1) (I) and (V), and not art. 9 (1) (V) only as stated by the player. The club insisted that it
had acted in line with said provisions but that the player continued to act in breach of the contract,
which led to the fulfilment of the termination provisions by the club with just cause.
37. The club declared that the provisions of art. 9 (1) (V) were not potestative. In fact, the club stated that
it could not be contested that the player continuously disturbed the order of the club, and even did
seek advice from the Japanese FA (“JFA”) as to the interpretation of such wording, as evidenced in its
communication to the player dated 28 February 2020.
38. The club, referring to Japanese law, explained that the country “has a more collective value system
than most European countries [and] in this aspect there is room for the DRC to consider Japanese law
in the sense of article 2 of the ‘Procedural Rules’”. In this respect, the Respondent argued that the
player “freely decided to go to Japan to live and work in this country” and therefore should have made
an effort to adapt to the laws of Japan, which are “based on the expected behaviours and values of
[Japanese] society”.
39. The club stated that the player should have complied with the obligation not to “disturb the order of
the club” and that, despite several warnings, he “decided to continue with his disrespectful behaviour
provoking his dismissal”. The club concluded that art. 9 (1) (V) has to be considered valid, and that
the player breached the article’s provisions.
40. Recalling the provisions of Swiss Law according to which unjustified absence may be considered a just
cause to terminate a contract even without prior warning, bearing in mind that it had warned the
player on 11 October 2019, the club concluded that it terminated the contract with just cause on 29
February 2020.
41. As to the argumentation of the player regarding the imposition of more lenient sanctions, the club
pointed out that during the 6 months of contractual relationship, the player had been fined on 18
September 2019, warned as to future conduct on 11 October 2019 (including a reference to a
potential termination should the player’s behaviour continue), a written warning on 1 February 2020
and a reminder/warning on 27 February 2020.
42. In reply to the club’s counter-claim, the Claimant first underlined that based on the jurisprudence of
the DRC, the Regulations on the Status and Transfer of Players always prevail over any national law
chosen by the parties, and therefore rejected the argumentation regarding the applicability of
Japanese law to the matter.
43. Equally, the player argued that he had reacted to the unilateral termination on 4 March 2020,
although “it would have been on the path of the club to reach an agreement through mutual
discussion in good faith, rather than unilaterally terminate [the contract]”. The player explained the
club contacted him on 24 April 2020 but they apparently did not wish to specify “any points of
reference” before the call. The player concluded that by doing so, the club “clearly acted negligently
in resolving the matter” and considering that he had made several attempts to solve the matter
amicably to no avail, the claim shall be considered admissible.
44. As to the substance, the player recalled the provisions of art. 12 par. 3 of the Regulations on the Status
and Transfer of Players and pointed out that the club did not prove that it had terminated the contract
with just cause. In fact, the player pointed out that the club “did not produce any authenticated and
unambiguous documentation that the club was entitled to prematurely terminate the Agreements
unilaterally. Let alone, that the player even committed the alleged acts and the false allegations and
subsequently that a breach of contract occurred that reached such a level that the club had just cause
to terminate the Agreements.”
45. The player indicated that in the termination letter dated 29 February 2020, the player was dismissed
on the sole basis of having missed a training session on 28 February 2020, and that the club came in
its counterclaim with additional allegations. The player highlighted some inconsistency on the club’s
side.
46. In fact, the player claimed that the club is acting on false accusations and subjective statements, and
by having terminated the contract on such grounds, it had no just cause to do so.
47. Referring to the DRC jurisprudence, the player explained that it could not be held that unauthorized
absences as from 2 to 5 days could be considered as just cause to terminate a contract. As such, he
concluded that having missed 3 training sessions over 6 months cannot be considered just cause to
terminate the contract.
48. As to the accusations of heavy drinking, the player vehemently rejected these accusations. What is
more, the player underlined that the club never took any action or step to deal with such situation.
49. The player reiterated all his requests for relief.
50. The player informed FIFA that, following the club’s termination of the contract, he had not found new
employment.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. First of all, the Dispute Resolution Chamber (hereinafter also: Chamber or DRC) analysed whether it
was competent to deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 14 March 2020, while it was decided on 27 August 2020. Taking into
account the wording of art. 21 of the August 2020 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in
accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations; edition August 2020), it would, in
principle, be competent to decide on the present litigation, which concerns an employment-related
dispute with an international dimension between a Dutch player and a Japanese club.
3. Notwithstanding, the Chamber recalled that the Respondent had challenged the composition of the
Chamber passing the present decision on the grounds that it was composed of only European
members, while the Respondent is Asian.
4. As to the first point, the Chamber was eager to emphasise that the composition of the Chamber is
established by the Regulations, specifically its art. 24, according to which the Chamber shall decide
in the presence of at least three members including the Chairman or Deputy Chairman, and shall be
composed by an equal number of player and club representatives. The Chamber noted that, in casu,
that the condition of quorum and equal representation was met.
5. This being said, the Chamber acknowledged the right of a party to challenge its composition, if
sufficient grounds as to their independence and impartiality are given by the party challenging it (cf.
art. 7 par. 2 of the Procedural Rules).
6. Having given thought to the Respondent’s challenge, the Chamber unanimously held that it cannot
sustain the Respondent’s argumentation. Indeed, the Respondent did not provide any concrete
reason as to why the specific members called to pass a decision in the present matter may not be
deemed independent or impartial in their assessment of the dispute at stake. The mere fact that the
members are all European cannot in itself be seen as an indication of a lack of independence or
impartiality. The Chamber wished to underline, in this regard, that it is oftentimes called to pass
decisions in the exact same circumstances as those described by the Respondent in the present case.
7. All in all, the Chamber found that the Respondent did not adduce any evidence of a lack of
independence and impartiality of its members and concluded that it must reject the Respondent’s
challenge.
8. The Chamber, therefore, held that the members present at the meeting in which the present matter
was scheduled are fully qualified to render a decision the present matter, in accordance with art. 24
of the Regulations. Furthermore and since the present matter presents an international dimension,
the Chamber is competent to decide on the matter in accordance with art. 22 b) of the Regulations.
9. With this established, the DRC analysed which edition of the Regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations (edition August 2020) and considering that the present matter was
submitted to FIFA on 14 March 2020, the March 2020 edition of said Regulations is applicable to the
present matter as to the substance.
10. The competence of the DRC and the applicable regulations having been established, the Chamber
entered into the substance of the matter. In doing so, it started by acknowledging the facts of the
case as well as the documents contained in the file. The Chamber, however, emphasised that in the
following considerations it will refer only to the facts, arguments and documentary evidence which
it considered pertinent for the assessment of the matter at hand.
11. First of all, the Chamber addressed the Respondent’s argument that the Claimant’s claim was
premature, referring to art. 15 of the employment contract (cf. point I. 6. above). Indeed, the
Respondent deemed that the Claimant did not attempt to resolve the matter amicably prior to
lodging a claim in front of FIFA. The Claimant denies that fact and points out that he had contacted
the Respondent on 4 March 2020 to find an amiable resolution to their dispute, to no avail.
12. Having thoroughly analysed the documentation on file, the Chamber found that since it was the
Respondent who had terminated the contract, an amicable resolution of the dispute seemed
compromised. Nonetheless, the Chamber noted that the Claimant had contested the termination by
letter dated 4 March 2019, urging the club to reconsider their decision. Moreover, the Chamber held
that it could not find evidence on file that the Respondent had, at any point in time, considered an
amicable resolution of the dispute.
13. Consequently, the Chamber, while reiterating that, in any event, its competence to hear disputes
between the parties is given in accordance with art. 22 b) of the Regulations, concluded that there
is no reason why it should not enter into the merits of the present dispute.
14. Thus, the Chamber started its analysis of the merits of the present matter by recalling that the parties
had concluded three agreements: a first employment contract valid as from 27 July 2019 until 1
January 2020, a memorandum valid as from 27 July 2019 until 1 January 2022, and a second
employment contract valid as from 1 January 2020 until 1 January 2021.
15. The dispute between the parties revolves around the termination of the contract by the Respondent
on 29 February 2020. In this regard, the Claimant argued that such termination was without just
cause as the club could have used more lenient measures, such as the imposition of a fine, prior to
terminating the contract. In this regard, the Claimant underlined that, prior to the termination, the
Respondent had only issued a warning letter dated 11 October 2019 after he had missed two
trainings. The Claimant also put forward that the letter of termination refers only to a missed training
on 28 February 2020 and his alleged bad behavior. The Claimant held that he had missed only three
trainings throughout the duration of the contract, while he denied that all allegations with respect
to his alleged heavy drinking. Furthermore, the Claimant emphasized that the Respondent’ decision
to send him to train alone affected his fundamental rights as a football player.
16. The Claimant requested the following:
“It will be established that the Respondent terminated the Agreements without just cause
per date of 29 February 2020,
The Respondent will pay to the Claimant compensation in the amount of NET EUR
1,336,364.- (in words: one million three hundred thirty-six thousand three hundred sixtyfour
Euros), immediately;
To apply 5% interest per annum as from the moment the above-mentioned amount
becomes due by the Respondent to the Claimant;
The Respondent will pay to the Claimant the additional costs, such as costs of the
proceedings and legal costs as made by the Claimant; and
Sporting sanctions will be imposed upon the Respondent.”
17. The Respondent, on the other hand, rejected the Claimant’s claim and lodged a counter-claim against
him. The Respondent is of the view that it did use an arsenal of sanctions against the Claimant,
including a fine on 18 September 2019, a warning letter on 11 October 2019, another warning letter
on 1 February 2020 and a reminder/warning on 27 February 2020.
18. The Respondent stressed that the termination was based on art. 9 (1) (V) of the contract (cf. point I.
4. above) and that such clause is not potestative. The Respondent affirms that the Claimant’s attitude,
in particular his heavy drinking, disturbed the order of the club. The Respondent, referring to
Japanese law, explained that the country “has a more collective value system than most European
countries [and] in this aspect there is room for the DRC to consider Japanese law in the sense of
article 2 of the ‘Procedural Rules’”. In this respect, the Respondent argued that the player “freely
decided to go to Japan to live and work in this country” and therefore should have made an effort
to adapt to the laws of Japan, which are “based on the expected behaviours and values of [Japanese]
society”.
19. The Respondent made the following counter-claim:
“Primarily:
f) The claim submitted by the player (…) is rejected.
g) The counterclaim submitted by Jubiloto Iwata is accepted.
h) The player (…) has to pay compensation to the club (…) for breach of contract in the amount of
EUR 517,091 plus 5% interest p.a. as of 1 March 2020 until effective payment.
i) A four-month restriction on playing in official matches is imposed on the player (…).
j) Consequences on the Player for the failure of pay the relevant amounts in due time to the Club
(…) in accordance with article 21bis RSTP
Subsidiarily:
c) The claim submitted by the player (…) is partially accepted.
d) [The club] is ordered to pay compensation to the player (…) in an amount of the residual value
of the Agreement reduced
iii) with primarily the Player’s actual new incomes or culpably omitted incomes or
subsidiarily with the hypothetical incomes by the Player until the end term of the
contractual relationship with [the club]; and further reduced
iv) by 80% of the mitigated compensation as determined in point i) or the otherwise
calculated compensation.”
20. Having recalled the parties’ antagonistic positions in the present matter, the Chamber acknowledged
that it had to examine whether the reasons put forward by the Respondent could justify the
termination of the contract in the present matter.
21. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a
certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more lenient
measures which can be taken in order for an employer to ensure the employee’s fulfillment of his
contractual duties, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only ever be an ultima ratio measure.
22. The Chamber recalled that the Respondent affirmed having relied on art. 9 (1) (V) of the contract to
terminate the contract, and also with reference with art. 2 of the contract, as the Claimant’s multiple
breaches of his contractual obligations had reached a level that could no longer render possible the
continuation of the employment relationship. The Respondent points to a behavioral problem on the
Claimant’s part, especially his alleged heavy drinking and, as a result, his multiple absences from
training and his disrespect towards the coach and other club staff during a training match on 5
February 2020.
23. In this regard, the Chamber first of all wished to emphasise that, while it does not believe clause 9
(1) (V) to be potestative, the issue of behavior allegedly affecting the order of the club is one which
is highly subjective. The party claiming that the alleged improper behavior affected them in a negative
way would have to prove that i) such behavior did occur and ii) that the alleged behavior did cause
a damage to the party in question.
24. The Chamber established that the parties agree on the fact that the player missed three trainings on
18 September 2019, 2 October 2019 and 28 February 2020 respectively.
25. In continuation, the Chamber recalled that according to the Respondent, in a training match on 5
February 2020, the player acted in a way which disturbed the team’s discipline: “refusal to shake
hands with head-coach, team staffs and players, kicking plastic bottles and the other violent words
against humanity”.
26. The Chamber equally noted that the Claimant did, in fact, recognize having missed trainings, and
having behaved in an improper way during the match on 5 February 2019. The Claimant also did
admit to consuming alcohol outside of working hours. However, the Chamber noted that the
Claimant had apologized for him missing trainings and his attitude during the match on 5 February
2020 in a letter dated 27 February 2020, while he affirmed that his alcohol consumption had
anything to do with him missing trainings.
27. With respect to the above-described events, the Chamber was of the opinion that the Respondent
had not produced evidence that the Claimant’s attitude had caused any harm to the club. In
particular, the Chamber noted that, just one month prior to the termination of the contract on 29
February 2020, the parties had in fact renewed their contract by signing the second employment
contract on 31 January 2020. In the Chamber’s view, such decision on the Respondent’s part to
renew the contract is in contradiction with its decision, one month later, to terminate the
employment relationship. In other words, the fact that the Respondent renewed the contract is a
clear indication that, all in all, it was satisfied with the Claimant’s services.
28. Furthermore, the Chamber was eager to emphasise that there are not enough elements on file to
determine that the Claimant’s consumption of alcohol outside working hours, which the Claimant
did admit to, had any negative impact on the Respondent. As to the allegations of improper behaviour, besides the two written warnings and the termination letter, there is no conclusive
evidence on file to support the club’s allegations that the player brought disrepute to the club, acted
in an improper or abusive way besides statements of club officials which are to be seen as subjective.
29. Equally, looking at the exchange of communications between the parties, one can draw some
inconsistencies, in particular in February 2020, in which (1) the player is complaining about his drastic
individual training regime and (2) the club is complaining about the player not being fit.
30. In continuation, the Chamber looked into the Respondent’s argument that it had, in fact, used more
lenient measures towards the Claimant prior to terminating the contract on 29 February 2020.
Indeed, it remains undisputed that the Respondent had imposed a fine of EUR 2,333 for his absence
from training on 18 September 2019, then the Respondent issued a warning letter to the Claimant
on 11 October 2019 after the latter had missed two trainings. In this regard, the Chamber noted
that, following such letter, no other incidents were reported until the Claimant missed another
training on 28 February 2020. The Chamber noted that the Respondent did issue a letter of warning
on 1 February 2020, however such letter did not refer to any specific incident which may have
occurred.
31. Finally, the Chamber observed that following the Claimant’s complaint that he had been sent to train
alone in the month of February 2020, several letters were exchanged between the parties,
culminating with the Claimant apologizing by letter dated 28 February 2020 for past conduct and
expressing his willingness to “make a fresh start”, and the Respondent terminating the contract just
one day later.
32. In light of the overall circumstance described above, the majority of the Chamber determined that it
could not follow the Respondent’s argument that the Claimant’s behavior had disrupted the order
of the club in a way that was harmful enough to justify the termination of the employment
relationship on 29 February 2020. Furthermore, the majority of the Chamber held the view that the
termination of the employment relationship on 29 February 2020 was disproportionate and hasty,
as the Respondent did not leave any chance to the Claimant to redeem himself after he accepted
responsibility for any wrongdoing and expressed his willingness to continue the employment
relationship. Indeed, the Respondent could have taken more lenient measures in order to put the
Claimant in a position to prove his intention to honour his contractual obligations towards the
Respondent moving forward.
33. Finally, the decisive element of the Respondent confirming their interest in the Claimant by
concluding the second employment contract on 31 January 2020 convinced the majority of the
Chamber that the Respondent did not have just cause to terminate the employment relationship with
the Claimant on 29 February 2020. Consequently, the Respondent is to be held liable for the early
termination of the employment contact without just cause.
34. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences
of the early termination of the employment contract without just cause by the Respondent. In this
regard, the Chamber first of all established that the Respondent’s counter-claim must be rejected.
35. Furthermore, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations,
the Claimant is entitled to receive from the Respondent compensation for breach of contract.
36. In this context, the Chamber outlined that, in accordance with said provision, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the contract at
the basis of the dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including, in particular, the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, the time remaining on the
existing contract up to a maximum of five years, and depending on whether the contractual breach
falls within the protected period.
37. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the
pertinent employment contract contained any clause, by means of which the parties had beforehand
agreed upon a compensation payable by the contractual parties in the event of breach of contract.
The Chamber duly acknowledged that the contract did contain a compensation clause, specifically
art. 10 of the contract, which established the player’s right to receive compensation in case he would
terminate the contract with just cause (cf. point I.5. above). Since such clause refers to a termination
by the player, however, the Chamber concluded that such clause is not applicable in the present
matter since it is the club which terminated the contract.
38. In view of the above, the Chamber established that it shall proceed to the calculation of the
compensation for breach of contract in accordance with the other parameters provided for in art. 17
par. 1 of the Regulations.
39. In so doing, the Chamber first of all took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same contract, along
with the professional situation of the Claimant after the early termination occurred. In this respect,
the Chamber pointed out that at the time of the termination of the employment contract on 29
February 2020, the second contract, combined with the memorandum, would run for ten months in
the season 2020 as well as for the entire season. Consequently, taking into account the financial
terms of the second contract and the memorandum, the Chamber concluded that the remaining
value of the contract as from its early termination by the Respondent until the regular expiry of the
contract amounts to EUR 1,336,363 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
40. In continuation, the Chamber remarked that following the early termination of the employment
contract at the basis of the present dispute the Claimant had not found any new employment. As
such, no mitigation of the compensation may be applied.
41. In conclusion, and having fully analysed the entire and specific circumstances of the present matter,
the majority of the Chamber decided that the Respondent shall pay the Claimant compensation for
breach of contract in the amount of EUR 1,336,363, which is considered by the majority of the
Chamber to be a reasonable and justified amount as compensation. Furthermore, 5% interest per
annum shall apply on the aforesaid amount as from the date of the present decision, i.e. 27 August
2020, as claimed.
42. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant / Counter-Respondent, Ebecilio Lorenzo Leroy, is partially accepted.
2. The counter claim of the Respondent / Counter-Claimant is rejected.
3. The Respondent / Counter-Claimant, Jubilo Iwata, has to pay to the Claimant, EUR 1,336,363 plus 5%
interest p.a. as from 27 August 2020 until the date of effective payment.
4. Any further claims of the Claimant / Counter-Respondent are rejected.
5. The Claimant / Counter-Respondent is directed to immediately and directly inform the Respondent /
Counter-Claimant of the relevant bank account to which the Respondent / Counter-Claimant must
pay the due amount.
6. The Respondent / Counter-Claimant shall provide evidence of payment of the due amount in
accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7. In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant / Counter-Respondent of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent / Counter-Claimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of the
ban of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court
of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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